Student Note Compulsory Classrooms and Custody: Applying State Truancy Laws to Find that School is Inherently Custodial for the Purposes of ...
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Student Note
Compulsory Classrooms and Custody: Applying State Truancy
Laws to Find that School is Inherently Custodial for the Purposes
of Miranda Warnings
Mary S. Williams*
I. INTRODUCTION
When Ava Duvernay depicted the grueling interrogation of the
Central Park Five 1 in her 2019 Netflix limited series When They See Us,
the director took nearly seven hours of interrogation 2 and turned it into
twenty minutes of horror for millions of viewers. The Exonerated Five,
who have since been released from prison, had their convictions
overturned, and were later compensated by the state of New York after
a civil suit, were all minors at the time of their interrogations. 3
Similarly, a few years prior, Netflix also released Making a
Murderer that contained raw footage of the confession of then minor,
Brendan Dassey. Like the confessions in When They See Us, Dassey’s
confession immediately sparked debate about police tactics when
interrogating minors. In both Dassey’s and the Exonerated Five’s cases,
minors were convicted based on what they said and signed on the day
of their confessions. 4 Though The Exonerated Five were taken into
custody and interrogated at a police station, the interrogation of Dassey
_____________________________
* Mary Williams is a third-year law student at the University of South Carolina School of
Law. She is the daughter of educators, a wife, and a mom. Special thanks to Dean Colin Miller
and Student Note Editor Ian Johnson for their feedback and guidance during the creation of this
Note, and to professor Ben Means for jokingly telling the author to make this topic a journal
article in 1L contracts class. This Note is dedicated to Mr. Raymond Santana who, during an
appearance at the University of South Carolina School of Law, urged law students to do
something with their degrees that would protect future children from what happened to him.
1. Once known as “The Central Park Five,” Yusef Salaam, Antron McCray, Kevin
Richardson, Raymond Santana, and Korey Wise are now known as the “Exonerated Five” due
to each of their convictions being individually overturned. See Terry Gross, Central Park
‘Exonerated 5’ Member Reflects on Freedom and Forgiveness, NPR (May 26, 2021),
https://www.npr.org/2021/05/26/1000454798/central-park-exonerated-5-member-reflects-on-
freedom-and-forgiveness.
2. BBC News, Central Park Five: The True Story behind When They See Us, Newsbeat,
(Jun. 12, 2019) https://www.bbc.com/news/newsbeat48609693#:~:text=Focus%20soon%20sh
ifted%20to%20the,of%20the%20others%20assaulted%20her. (last visited Apr. 2022)
3. See id.
4. See id.; Dassey v. Dittman, 877 F.3d 297 (7th Cir. 2017).
261262 Journal of Law & Education Vol. 51, No. 1
began how many interrogations of minors begin—by him being
removed from the classroom. 5
This Note specifically addresses interrogation within a school
setting. Through evaluation of Miranda requirements, this Note seeks
to demonstrate that students are already in a custodial environment prior
to formal questioning in school, that the school environment is
inherently coercive, and therefore the custody analysis for Miranda
purposes must begin much earlier than courts have generally applied the
totality of circumstances test.
First, this Note will explore the requirements of when a subject must
be Mirandized and when a subject can validly waive their Miranda
rights. Then, I ask the question of whether children have the capacity to
meet those requirements and whether children can ever meet those
requirements while in a school setting. This Note then reviews the
factors that make up the totality of the circumstances analysis that courts
use when determining whether students are in custody in school, and
whether that analysis begins early enough to properly recognize the
environment that state truancy laws create.
Next, this Note addresses common law and statutory remedies that
could be used to quell the likelihood of police intimidation during
interrogation of minors and the likelihood of minors’ false confessions.
Ultimately, this Note comes to the conclusion that retroactive remedies
still do not properly protect students in interrogation settings. And, that
while some state laws attempt to protect minors in interrogations, these
laws continue to require the subjective determination of law
enforcement to find that custody is triggered; by applying truancy laws
to the Miranda custody analysis, the custody of students in school
becomes an objective analysis based in the reality of law and
consequence.
_____________________________
5. Innocence Project, Brendan Dassey’s Confession Highlights Importance of Recording
Interrogations, (Feb. 01, 2016) https://innocenceproject.org/brendan-dasseys-confession-
highlights-importance-of-recording-interrogations/, (last visited Mar, 2022).Spring 2022 Compulsory Custody and Classrooms 263
II. BASIS OF MIRANDA REQUIREMENT
In Miranda v. Arizona, the Supreme Court acknowledged that a
police interrogation is inherently coercive. 6 As such, the Court
determined that for a person’s Fifth Amendment right against self-
incrimination to be fully recognized, law enforcement officers must
ensure that an in-custody suspect be made aware of their rights prior to
questioning. 7 The Court cited a litany of police interrogation tactics at
the time that were cause for concern and highlighted the move from
physical coercion to psychological coercion as one of the reasons it was
important to make subjects fully aware of their rights prior to
questioning. 8 The Miranda Court did not specify the language of the
warning, and allowed individual police departments to set their own
policies on the warning; however, the warning has become so
standardized that it is a staple in American crime television that many
people know by heart: “You have the right to remain silent. Anything
you say can and will be used against you in a court of law. You have the
right to . . . a[n attorney.] . . . If you cannot afford [one], one will be
[provided for] you.” 9 But, the last part of the Miranda warning is often
faded out as television detectives place a handcuffed suspect into the
back of a squad car and is arguably the most important: “Do you
understand . . . these rights [as] I have explained [them] to you?” 10 The
requirement of comprehension of the rights outlined in the Miranda
warning is central to its purpose of protecting due process. Therefore,
_____________________________
6. Miranda v. Arizona, 384 U.S. 436, 458, 467-68 (1966).
7. Id. at 468 (“More important, such a warning is an absolute prerequisite in overcoming
the inherent pressures of the interrogation atmosphere.”).
8. Id. at 448-55 (citing INBAU & REID, CRIMINAL INTERROGATION AND CONFESSIONS (1962)
(Reid Manual)).
9. See, Akhil Reed Amar, Ok, All Together Now: ‘You have the Right to . . . ’, L.A. TIMES,
Dec. 12, 1999; COLUMBIA POLICE DEP’T, COLUMBIA POLICE DEP’T POLICY AND PROCEDURE
MANUAL, Standard, Policy 440.4, (6th ed. 2018). See e.g., Off. of the Att’y Gen. of S.C., Opinion
Letter (June 4, 2009) (Questioning whether “law enforcement [has] the new responsibility of
including this ‘new fifth right’ when Mirandizing a person being arrested, and should such a
case be dismissed in the absence of this . . . (claimed right)?”). Miranda itself does not set out
the vocabulary required to inform a subject of their rights. Specific language is subject to change
from precinct to precinct, though most have standardized the Miranda language after additional
constitutional litigation that is outside the scope of this Note. See cf., Florida v. Powell, 559 U.S.
50 (2010) (reversing the Supreme Court of Florida, finding that a subject knowingly waived his
Miranda rights even though a standard verbal warning was not given).
10. COLUMBIA POLICE DEP’T supra note 9, at Policy 440.264 Journal of Law & Education Vol. 51, No. 1
the Court in Miranda also required that the “heavy burden” of proving
a subject knowingly, intelligently, and voluntarily waived these rights
lies with the state, and that unwarned statements would be prima facie
unconstitutional. 11
Later, the Court addressed the voluntariness prong of the Miranda
Waiver in Moran v. Burbine, where a Justice O’Connor-penned opinion
spelled out that, for a waiver to be voluntary, it must: (1) be the “product
of a free and deliberate choice rather than intimidation, coercion, or
deception,” 12 and (2) [the subject] must have an understanding of the
right that they are waiving and the consequence of relinquishing that
right. 13 The determination of whether or not these requirements have
been sufficiently fulfilled will be judged on the totality of the
circumstances and will involve a factual and subject-specific analysis. 14
In this opinion, the Court ruled that information unknown to the subject
at the time of questioning did not influence his decision to waive the
right to counsel and the right to remain silent. 15
Determining custody is an objective inquiry where the court will
first determine what the circumstances of the interrogation were, and
second, whether a reasonable person would feel free to leave or resist
police questioning given those circumstances. 16 There are a few
noteworthy issues when using this framework during the interrogation
of minors. First, a determination of whether a suspect is in custody is
based on whether the reasonable person (an adult) would feel free to
leave or refuse police questioning. 17 Second, minors are inherently
subordinate when speaking to adults in authority positions.18 And
finally, in determining their capacity to waive their Miranda
protections, the likelihood that children and minors actually do
understand the consequences of waiving their right to remain silent is
slight at best. 19
_____________________________
11. Miranda, 384 U.S. at 475.
12. Moran v. Burbine, 475 U.S. 412, 421 (1986).
13. Id.
14. Id.
15. Id. at 422.
16. J.D.B. v. North Carolina, 564 U.S. 261 (2011) (citing Oregon v. Mathiason, 429 U.S.
492, 495 (1977)).
17. Id. at 271.
18. Id. at 274-75.
19 Id. at 273 (“[C]hildren characteristically lack the capacity to exercise mature
judgement.”).Spring 2022 Compulsory Custody and Classrooms 265
By maintaining the same adult-centric “totality of the
circumstances” framework when determining whether minors have the
capacity to understand that they are (1) in custody and (2) afforded
certain constitutional protections, both the criminal justice system and
judiciary fall short in properly analyzing the capacity of minors in
interview and interrogation settings. In doing so, not only do we stray
far from the spirit of the Miranda warning, but we fall far short of
affording minors the privilege against self-incrimination and due
process protections required by the Fifth Amendment. 20
Nowhere is this more prevalent than in the interrogation of minors
at school. School, where students are legally compelled to be 21, is an
inherently custodial environment that should trigger not only an
immediate Miranda warning but also the ability of students to recant
statements they may have made while in a school interrogation setting.
III. PROBLEMS WITH JUVENILE CONFESSIONS
The Supreme Court has grappled with the confessions of minors for
the last seventy years. 22 In 1948, the Court found in Haley v. Ohio that
there was need for “special care” when the confession was one of a
“mere child.” 23 Furthermore, the Court found in Haley that there was
undisputed evidence that coercion was used in extracting the confession
at issue due to the police denying the minor his right to counsel. 24 But
while the age of the subject at the heart of Haley is the premise of the
Court’s decision, it was not necessary to its ultimate holding. Notably,
the Court found that the circumstances surrounding Haley’s
interrogation would have triggered the same inquiry, and likely the same
result, for an adult suspect. 25
Later, the Court reiterated its position from Haley and the need for
pause when evaluating the confession of a minor. In Gallegos v.
Colorado, police held a fourteen-year-old boy for five days, refusing
him contact with both his mother and his lawyer, as well as any other
_____________________________
20. U.S. CONST. amend. V, cl. 3-4.
21. See infra Section III.B.1.
22. See Haley v. Ohio, 332 U.S. 596, 599 (1948).
23. Id. at 599.
24. Id. at 600.
25. Id. at 601.266 Journal of Law & Education Vol. 51, No. 1
adult who may have had the child’s best interests in mind.26 In Haley,
the Court asserted that the minor would not have understood the full
gravity of his confession without the presence of a parent, lawyer, or
other “friendly adult.” 27 But here too, the circumstances were such that
the Court could have found the subject’s confession involuntary
regardless of the age. In Gallegos, the fact-specific inquiries found
especially egregious were the failure to present him in front of a Juvenile
Court judge, the length of his detention, and the isolation from guardian
or representation. 28 While all of these factors were exacerbated by the
defendant’s age, age alone was not dispositive.29 Because Haley and
Gallegos were both pre-Miranda cases, the inquiries in both focused on
the involuntariness of the defendants’ confessions as a violation of the
privilege against self-incrimination. The Court formally extended the
Sixth Amendment right to counsel and Fifth Amendment privilege
against self-incrimination to minors in 1967.30 In In re Gault, the Court
formally recognized that there may be “special problems” when acting
on the waiver of a minor and that law enforcement officers may need to
utilize techniques different from those used on adults when extracting a
confession and when relying on the child’s ability to waive their Fifth
Amendment privilege. 31
Throughout the early twenty-first century, the Court recognized,
through a series of Eighth Amendment challenges, that there were
serious differences in the development of children and adolescents as
opposed to adult criminal defendants. 32 Through these cases, the Court
pointed specifically to the neurological development of children, noting
first that they have an “undeveloped sense of responsibility,” that
children and adolescents are “more susceptible to influence and outside
pressures,” and that a juvenile’s character is less formed than an adult’s
so their actions are less likely to be morally perverse in perpetuity (less
likely to always be bad). 33
_____________________________
26. Gallegos v. Colorado, 370 U.S. 49, 50 (1962).
27. See Haley, 332 U.S. at 599.
28. See Gallegos, 370 U.S. at 54.
29. Id. at 55.
30. In re Gault, 387 U.S. 1, 55 (1967).
31. Id.
32. Gall v. United States, 552 U.S. 38, 57 (2007); see generally Hannah Seigel Proff &
Michael Stevens Juba, Evolving the Standard of Decency: How the Eighth Amendment Reduces
the Prosecution of Children as Adults, COLO. LAWYER, Mar. 2018, at 39.
33. Gall, 552 U.S. at 57; In re Gault, 387 U.S. at 55.Spring 2022 Compulsory Custody and Classrooms 267
However, it wasn’t until 2011 that the Supreme Court took up the
issue of a subject’s age when determining custody. 34 In J.D.B. v. North
Carolina, the Supreme Court considered whether or not the age of a
suspect should be an element considered when making the custody
determination. 35 In that case, a North Carolina student was removed
from his school classroom by a uniformed police officer and taken to a
conference room for questioning. 36 The school and local authorities
worked together to isolate the student from the general school
population and urged his confession without contacting his legal
guardians, 37 but the Court only made the narrow determination that age
was a necessary factor when determining if a subject was in custody. 38
In its decision in J.D.B., the Court recognized that there are inherent
differences in a child’s perception of police questioning and that there
are instances when an adult would feel free to leave or terminate
questioning when a minor would not. 39 Additionally, the Court
determined that when the age of a minor subject is known or obvious to
an interrogator, then that is part of the objective inquiry to determine
custody. 40 In other words, the Court held that because age is knowable,
even though age is a personal characteristic, age is an objective element
and therefore allowed to be used when determining whether or not a
subject is in custody and therefore afforded the protections of a Miranda
warning prior to questioning. However, though age may be knowable,
using age requires the interrogators to undertake a subjective analysis of
whether age is a predominating factor. Additionally, by only using age
as a factor, the Court forecloses the reality that there may be some
students who are not minors (i.e., seniors in high school over the age of
eight-teen), that are nonetheless be subject to the general restrictions of
being in school.
Though the Court ruled in favor of including age in the custody
analysis, it conclusively did not adopt a framework that would have
recognized that school is inherently custodial in J.D.B. v. North
_____________________________
34. J.D.B. v. North Carolina, 564 U.S. 261 (2011).
35. Id. at 275.
36. Id. at 265-66.
37. Id.
38. Id. at 277, 281.
39. Id. at 272-73.
40. Id. at 274.268 Journal of Law & Education Vol. 51, No. 1
Carolina.41 Justice Alito, in his dissent in J.D.B., properly recognizes
that school is inherently custodial. 42 The majority in J.D.B. requires
police officers to make a determination as to a minor’s age when making
a custody determination, Justice Alito urges the objective consideration
of “the setting in which questioning occurs, restrictions on a suspect’s
freedom of movement, and the presence of police officers or other
authority figures.” 43 Not only does this framework keep the Miranda
analysis objective and takes the custody determination out of the hands
of police officers, but this analysis also properly recognizes that,
regardless of age, there are certain settings, such as school, that are
inherently custodial for minors. 44
A. Youth and Adolescents Are More Likely to Improperly Waive
Miranda Rights Due to Cognitive Development
Like the Supreme Court found in J.D.B., researchers have also found
that children lack the cognitive ability to fully understand their rights
during an interrogation, and that children also lack the ability to know
when adults seek a truthful answer and not the answer that they believe
the adult wants to hear. 45 But research has shown, for at least the last
twenty-five years, that minors, and not just juvenile offenders,
categorically lack the capacity to properly understand the consequences
that stem from legal proceedings. 46 Specifically, research has shown that
minors under the age of fifteen may not even understand what a right is,
and are particularly likely to misconstrue the concept of Miranda rights,
such as having the right to an attorney without being charged with a
crime, and a basic understanding of the right to remain silent—not only
silent until spoken to.47 These findings lend support to the hypothesis
that minors are not able to adequately comprehend their Miranda rights
to waive them, and fail the knowing requirement for a valid Miranda
waiver. The “knowing” prong of the Miranda waiver analysis is greatly
_____________________________
41. Id. at 276.
42. Id. at 293 (Alito, J., dissenting).
43. Id. (emphasis added).
44. Id. at 297.
45. See Naomi E.S. Goldstein et al., Waving Good-Bye to Waiver, 21 N.Y.U. J. LEGIS. &
PUB. POL’Y 1 (2018).
46. JUVENILE CRIME, JUVENILE JUSTICE 15-16 (McCord et al. eds., 2001).
47. Id.Spring 2022 Compulsory Custody and Classrooms 269
impacted by age because, for a subject to properly waive their Miranda
rights, they must first comprehend them. Particularly:
Children may have many motivations for waiving
Miranda: from childhood on, parents teach their children
to tell the truth—a social duty and value in itself. The
compulsion inherent in the interrogation room amplifies
social pressure to speak when spoken to and to defer to
authority. Justice personnel suggested that juveniles
waived to avoid appearing guilty, to tell their story, or to
minimize responsibility. Some thought they waived
because they did not expect severe sanctions or believed
that they could mitigate negative consequences. Others
ascribed waivers to naïve trust and lack of sophistication.
Others attributed waivers to a desire to escape the
interrogation room—the compulsive pressures Miranda
purported to dispel. 48
Not only do minors lack the ability to properly conceptualize their
rights during interrogations, but minors are also more likely to make
false confessions. 49 Through a study of the interrogation experiences of
youth offenders, researchers Lindsay Malloy, Elizabeth Shulman, and
Elizabeth Cauffman identified that the manner by which many youth
offenders had been interrogated lent itself to not only false confessions,
but also false pleas. 50 The American system of interrogation is guilt-
based and is often centered on tactics that are confrontational,
accusatorial, and intimidating; 51 and police investigators are trained to
interrogate minors in the same manner as adults, using false evidence,
deceit, repeated questioning, 52 and even some techniques that are
_____________________________
48. Goldstein et al., supra note 45, at 29 (citations omitted).
49. Jason Mandelbaum & Angela Crossman, No Illusions: Developmental Considerations
in Adolescent False Confessions, AM. PSYCH. ASS’N (Dec. 2014) (citing that in a study of 328
exoneration cases, forty-four percent of juveniles falsely confessed compared to thirteen percent
of adults; and the youngest cases, involving twelve-to-fifteen-year-olds, seventy-five percent
falsely confessed).
50. Lindsay C. Malloy et al., Interrogations, Confessions, and Guilty Pleas Among Serious
Adolescent Offenders, 38 LAW & HUM. BEHAV. 181 (2014).
51. Id. at 182.
52. Id.270 Journal of Law & Education Vol. 51, No. 1
purposefully meant to gain an advantage over minors given their
“developmental vulnerabilities.” 53 Of studied interrogation tactics,
minors have reported that police most commonly use deception, duress
(threats), befriending, and intimidation; 54 and that most interrogations
lasted longer than two hours. 55 Furthermore, of the youth offenders
studied, over one third had given a false admission of guilt to a police
officer or a judge, and roughly 17% claimed to have falsely confessed
to police only. 56 Strikingly, none of the youth offenders who admitted
to giving a false confession to police claimed to have a lawyer or parent
present at the time they falsely confessed; and of those who did confess,
those to whom police refused to give a break were more likely to falsely
admit guilt.57 These numbers are even more telling when you consider
the reason that many minors gave for their false confessions: Protection
of another. 58
Central to understanding whether minors have the cognitive
capacity to understand their Miranda rights during interrogation is data
demonstrating that the majority of those who falsely confessed did so to
protect another person that they may know to have committed the crime,
instead of simply remaining silent or requesting the presence of an
attorney. 59 Minors’ propensity to falsely confess to protect others is
consistent with theories that youth and teens are incredibly sensitive to
peer influence, and a fear of losing social status and friends may unduly
influence youth to falsely confess. 60 What Mallory’s data shows us is
that youth consider a wide range of variables during confession and they
do not adequately weigh their own rights when deciding to speak to
_____________________________
53. Id.; see also Goldstein et al., supra note 45, at 27 (“Psychologically coercive strategies
that contribute to interrogative suggestibility play on young suspect’s eagerness to please, firm
trust in people of authority, lack of self-confidence, increased desire to protect friends/relatives
and to impress peers, and increased desire to leave the interrogation sooner.”).
54. See Malloy et al., supra note 50, at 187; see also Goldstein, supra note 45, at 27 (“In
situations wherein police officers present the waiver decision as an inconsequential formality or
imply that waiver is in the youth’s best interests, the youth faced with the question may be ill-
equipped to independently grasp the significance of waiving rights. That youth may also be less
able to resist the perceived pressure to submit to the officers’ continued questioning.”).
55. Malloy et al., supra note 50, at 188. It is notable that these tactics do not comport with
the holdings in Haley or in Gallegos where the Supreme Court recognized the care that would
need to be taken in interrogating minors.
56. Id. at 186.
57. Id. at 188-89.
58. Id. at 186.
59. Id.
60. Id. at 18990.Spring 2022 Compulsory Custody and Classrooms 271
police, confess to police, or both. Therefore, minors’ ability to properly
comprehend the gravity of their rights during interrogation is
insufficient to properly waive their Miranda rights. 61
Dr. Thomas Grisso conducted a study that found that knowing
comprehension of Miranda rights and subsequent waiver was based on
age. 62 That study found that around 90% of youth waive their Miranda
rights, an exponentially higher rate than adults, and that the younger the
subject being interrogated, the less likely they were to actually
understand not only what rights they had under Miranda, but, most
importantly, what rights they were waiving when they chose to speak to
police. 63 The Grisso study found that 88% of ten to eleven-year-olds,
73% of twelve-year-olds, 65% of thirteen-year-olds, and 54% of
fourteen-year-olds did not have an adequate grasp on a Miranda
warning, or its function in the legal system. 64 These numbers are nothing
short of shocking when you take into account that many young people’s
first interactions with police happen at school, which lends to an
inevitable exacerbation of the school to prison pipeline. 65
_____________________________
61. This is similarly illustrated in the Seventh Circuit ruling in Dassey v. Dittman, where
the court noted that Brenden Dassey’s interrogation was latent with suggestive interviewing
techniques when investigators told Dassey, “Honesty here Brendan is the thing that’s gonna
help you. OK, no matter what you did, we can work through that. OK. We can’t make any
promises but we’ll stand behind you no matter what you did. OK. Because you’re being the
good guy here . . . And by you talking with us, it’s helping you. OK? Because the honest person
is the one who’s gonna get a better deal out of everything.” Dassey v. Dittman, 877 F.3d 297,
307 (7th Cir. 2017).
62. See generally Goldstein et al., supra note 45.
63. Id. at 29-30.
64. Id. at 30.
65. Discussions surrounding the prevalence of SROs and the School to Prison Pipeline are
outside of the scope of this Note. However, for more comprehensive scholarship on these topics,
see Jillian Lesley, Note, Discipline of Crime: An Analysis of the Use of Memoranda of
Understanding to Regulate School Resource Officer Intervention in South Carolina Schools, 50
J.L. & EDUC. 192 (2021) (discussing the relationship between schools and hired resource
officers) and see Meghan Wicker Darby, Note, Ending the School-to Prison-Pipeline in South
Carolina through Legislative Reform, 50 J.L. & EDUC. 390 (2021) (discussing the school-to-
prison pipeline in South Carolina and possible remedies).272 Journal of Law & Education Vol. 51, No. 1
B. Coercion During Interrogations Is Heightened in a School
Setting Because Students Are in an Inherently Subordinate
Situation.
Even if courts remain steadfast in holding that minors can have the
capacity to waive their Miranda rights, school interrogations are still
inherently coercive due to the subordinate nature of the
student−schoolhouse relationship. Though students have always been
subordinate to school faculty and administrators, over the last few
decades, a flood of federal school safety funding has increased the
presence of police in schools. 66 This increase has exacerbated the
subordinate relationship of students to school administrators and school
resource officers (SROs). 67 No longer are students simply subject to the
discipline of faculty, rather, students are faced with SROs daily—and
the threat that a simple infraction can land them in custody of these
officers. 68 This ever-evolving relationship between students,
administrators, and SROs demonstrates that, like one researcher found,
“[b]ecause legal standards for searches and interrogations have a much
lower standard within schools, SROs may operate with more latitude
than other police officers, thus posing a threat to students’ civil rights.” 69
Inevitably, given the discussion above, the change in this relationship
requires us to examine whether the schoolhouse is an inherently
coercive environment when making Miranda determinations.
_____________________________
66. Chelsea Connery, The Prevalence and the Price of Police in Schools, UCONN CTR. FOR
EDUC. POL’Y, at 2 (2020).
67. Id.
68. See e.g., Ryan King & Marc Schindler, A Better Path Forward for Criminal Justice:
Reconsidering Police in Schools, BROOKINGS INST. 37, 39 (2021), https://www.
brookings.edu/wp-content/uploads/2021/04/4_Better-Path-Forward_Ch4_Reconsidering-
Police-in-Schools.pdf.
69. See Connery, supra note , 66 at 8.Spring 2022 Compulsory Custody and Classrooms 273
1. Truancy Laws Create Inherently Custodial Environments for
Students Because They Are Not Allowed to Leave, and They or Their
Guardians Could be Found Criminally or Civilly Liable for Missing
School.
Across the country, truancy laws 70 compel student attendance at
school, making their presence required. The first truancy laws were
enacted in 1852 in Massachusetts, but by 1918 every state had some
version of compulsory attendance law. 71 Created to curtail child labor
during the industrial revolution of the early twentieth century, truancy
laws were a reflection of the shifting labor market punctuating an
evolving society, our lowered reliance on children in the agriculture
sector, and the increase in immigrant labor that filled much of the
workforce that children once had. 72
Unlike other school behavioral issues, truancy affects male and
female students almost equally. 73 Truancy issues also highlight a divide
between upper- and lower-income students—essentially, students with
more resources often have a greater chance of addressing underlying
issues that affect attendance and are not subject to dealing with the
repercussions of truancy laws and chronic absenteeism when they are at
school. 74 Usually, truancy peaks in high school, around age sixteen 75 and
can be caused by myriad factors:
Kids don’t often have a lot of forward thinking[;] they
don’t think about the consequences of skipping once
versus the consequences of skipping twice. Some of
them have real challenges [at home, too]. Some of the
_____________________________
70. Sometimes referred to as “compulsory attendance” laws, truant is defined as: “a child
who is regularly absent from school without permission.” Truant, CAMBRIDGE DICTIONARY
ONLINE, https://dictionary.cambridge.org/us/dictionary/english/truant (last visited Jan. 7, 2022).
71. Adriana Lleras-Muney, Were Compulsory Attendance and Child Labor Laws
Effective? An Analysis from 1915 to 1939, 45 J.L. & ECON. 401, 403 (2002).
72. Id. at 401−02. But see Nadja Popovich, Do US Laws That Punish Parents for Truancy
Keep Their Kids in School?, THE GUARDIAN (June 23, 2014), https://www.theguardian.
com/education/2014/jun/23/-sp-school-truancy-fines-jail-parents-punishment-children.
73. Popovich, supra note 72.
74. Id.
75. SARAH HOCKENBERRY & CHARLES PUZZANCHERA, NAT’L CTR. FOR JUVENILE JUST.,
JUVENILE COURT STATISTICS 2018, at 66 (2018), https://ojjdp.ojp.gov/sites/g/files/xyckuh176/
files/media/document/juvenile-court-statistics-2018.pdf.274 Journal of Law & Education Vol. 51, No. 1
kids who are truant, man, you just have to commend
them for getting out of bed in the morning. Their lives
are sometimes incredibly hard, and teachers and others
at school don’t often know what is going on in their life.
Maybe they have to babysit for a younger sibling, or take
care of grandma, or if mom and dad were fighting all
night and you couldn’t sleep. A lot could be going on. 76
Regardless of which students are more prone to violate truancy laws,
the majority of states levy fines on parents if their children do not attend
school regularly. 77 Some states, like South Carolina, even include
truancy as a possible basis for the criminal charge of delinquency of a
minor. 78 In one of the most egregious applications of truancy laws, a
Pennsylvania woman died while serving a forty-eight-hour jail sentence
for her child’s truancy fines, that totaled roughly two thousand dollars. 79
In effect, truancy laws can be incredibly detrimental to parents and
students found in violation; they have the full force of any other civil or
criminal penalty, and some states have incredibly strict truancy laws:
_____________________________
76. Popovich, supra note 72.
77. Popovich, supra note 72.
78. S.C. CODE ANN. § 16-17-490 (1976).
79. Popovich, supra note 72.Spring 2022 Compulsory Custody and Classrooms 275
State Definition of Truancy Consequence of Violation
Pennsylvania More than three unexcused Student and parent can be fined up to
absences from school. After three $300 per additional unexcused
24 PA. STAT. AND unexplained absences, students absence. If parents cannot or do not
CONS. STAT. ANN. and parents are both found in pay, or if they do not complete a
§§ 13-1326, violation of state truancy law. required parenting class, they “may
1333.3 (West be sentenced to the county jail for a
2016). period not to exceed three (3) days.”
Georgia Defines truancy as any more than (1) a fine of up to $100; (2) up to
five unexcused absences thirty days in jail; (3) community
GA. CODE ANN. service; (4) any combination of the
§20-2-690.1 above.
(2014)
California Students are considered truants if Chronic truants, or those who have
they miss three full days in a been referred to the school truancy
CAL. EDUC. CODE single school year or are late to board four times, can be referred to
§§ 48260−48293 class more than thirty minutes on juvenile court and their parents can be
(2013); CAL. three occasions, without a valid fined up to one thousand dollars for
PENAL CODE § excuse, in a school year. California civil contempt. Additionally, parents
270.1 (2011). defines a chronic truant as any of students in kindergarten through
student who is subject to the eighth grade may be found guilty of a
compulsory attendance law who misdemeanor and jailed for no more
misses 10% or more of the school than one year and fined up to
year without a valid excuse. $2,000.00
Delaware Students are considered truants Parents who are found guilty can be
after three unexcused absences fined up to $300 and imprisoned up to
DEL. CODE ANN. during the school year. Upon a ten days; second offenses can carry a
tit. 14, §§ determination that a student is a fine of up to $500 and twenty days in
2721−2729 truant, school officials can jail; and third offences come with a
(2021). schedule a meeting with the fine of up to $1,150 and thirty days in
student and guardian and can also jail.
file a complaint with the court.276 Journal of Law & Education Vol. 51, No. 1
Just last year, over three hundred students and parents in two Dallas
area school districts 80 were referred to court for truancy actions. And
though Texas has taken legislative action in the last five years to
decriminalize truancy for students, students and their parents can still be
subject to civil liability for missing school. 81 In one such case
highlighted by The Dallas Morning News, a mother was unable to watch
her children during virtual learning because she had to go to work in
person. 82 The mother told the court that she did not send the children to
in-person school because she could not afford to buy them new clothes
so they stayed home. 83 Though the judge connected the mother with a
second-hand clothing closet for her children so they could return to in-
person learning (during a pandemic, in one of the highest transmission
states), the mother will still be responsible for paying the truancy fine
accumulated. 84
Texas is far from alone in its enforcement of truancy laws. Juvenile
Court Statistics show that truancy remains the top offense referred to
juvenile court, making up 62% of juvenile court cases in 2018. 85
But what, if anything, should truancy laws do for the Miranda
custodial analysis? Unequivocally, truancy laws remove the aspect of
choice from school attendance—because truancy laws apply to private
and public schools alike. 86 So it would follow that where students do not
have a choice as to whether they can be away from school, and where
there is a heightened presence of police in school, that any time they
engage with police or resource officers on school grounds, they are
already in a custodial environment. The custodial analysis of Miranda
centers around the psychological interpretation of in custody, focusing
on isolating a subject to be questioned, distinguishing a subject being at
home or elsewhere familiar with making a subject succumb to
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80. Talia Richman, Some North Texas Students and Parents Facing Court for Classes
Missed During the Pandemic, THE DALLAS MORNING NEWS (Apr. 1, 2021), https://www.
dallasnews.com/news/education/2021/03/31/some-north-texas-students-and-parents-facing-
court-for-classes-missed-during-the-pandemic/. (“Mesquite referred 19 students to truancy
court last fall along with 86 parents. Of those, nearly all were Black or Hispanic. Duncanville
filed cases on 65 parents and 143 students, most of whom came from low-income families.”).
81. Id. Previously, children and teens were subject to criminal sanctions and even jail time
for missed school, which would ironically make them miss more school.
82. Id.
83. Id.
84. Id.
85. HOCKENBERRY & PUZZANCHERA, supra note 75, at 64.
86. See, e.g., S.C. CODE ANN. § 59-65-10 (1976).Spring 2022 Compulsory Custody and Classrooms 277
questioning “at least in a room of [the officer’s] choice,” such as the
interrogator’s office. 87 But Miranda requires an objective determination
on whether the subject would have felt free to leave. Undeniably,
students—in all fifty states, regardless of if they attend public or private
schools—are not free to leave according to the state’s own truancy
laws. 88 Miranda requires that confessions are more than simply
voluntarily made; instead, Miranda requires the absence of compulsion:
The rule is not that, in order to render a statement
admissible, the proof must be adequate to establish that
the particular communications contained in a statement
were voluntarily made, but it must be sufficient to
establish that the making of the statement was voluntary;
that is to say, that, from the causes which the law treats
as legally sufficient to engender in the mind of the
accused hope or fear in respect to the crime charged, the
accused was not involuntarily impelled to make a
statement when but for the improper influences he would
have remained silent. 89
The Court continued, citing Justice Brandeis’s decision in
Ziang Sung Wan v. United States:
In the federal courts, the requisite of voluntariness is not
satisfied by establishing merely that the confession was
not induced by a promise or a threat. A confession is
voluntary in law if, and only if, it was, in fact, voluntarily
made. A confession may have been given voluntarily,
although it was made to police officers, while in custody,
and in answer to an examination conducted by them. But
a confession obtained by compulsion must be excluded
whatever may have been the character of the
_____________________________
87. Miranda v. Arizona, 384 U.S. 436, 449 (1966).
88. State Education Practices, Compulsory School Attendance Laws, Minimum and
Maximum Age Limits for Required Free Education, by State: 2017, NAT’L CTR. FOR EDUC.
STATS. (2017), https://nces.ed.gov/programs/statereform/tab1_2-2020.asp [hereinafter NAT’L
CTR. FOR EDUC. STATS.].
89. Miranda, 384 U.S. at 462.278 Journal of Law & Education Vol. 51, No. 1
compulsion, and whether the compulsion was applied in
a judicial proceeding or otherwise. 90
Both the Miranda Court and the Court in Ziang Sung Wan
recognized that the custodial analysis, and subsequent voluntarily
analysis, require us to expand our definition for whatever may have been
the character of the compulsion.
Contemporary truancy laws, coupled with the heightened presence of
police officers, SROs, or both, in schools creates an environment where
students are not physically or psychologically free. As such, students
interrogated in a school setting do not have the requisite voluntariness
component to waive their Miranda rights.
Additionally, recognizing that students are not voluntarily in
school, and therefore already in a custodial situation, keeps both law
enforcement and the courts from undertaking a massive totality of the
circumstances analysis that requires an inquiry into case specific factors,
none of which account for compulsory attendance.
C. The Current Totality of the Circumstances Custody Analysis Is
Insufficient to Recognize the Reality That Students Are Already in
a Custodial Environment in Schools.
Some courts have properly found that students are in a custodial
setting while being questioned in school, but those cases have involved
in intensive exploration of fact-specific circumstances that has left the
school-custody analysis as a hodgepodge of factors to be considered—
rather than a clear understanding that students are in a custodial
environment when in a school setting. In B.A. v. State, the Supreme
Court of Indiana identified the absurd number of considerations that
both law enforcement, and subsequently the justice system, must
undertake to determine whether a student should be afforded Miranda
protections while being questioned at school. 91
The court in that case concluded that the student, who was escorted
off his school bus and to the vice principal’s office for questioning by
the vice principal and a single SRO, was in fact in custody. 92 The court
_____________________________
90. Id. (quoting Ziang Sung Wan v. United States, 266 U.S. 1, 14−15 (1924)).
91. B.A. v. State, 100 N.E.3d 225, 232−33 (Ind. 2018).
92. Id. at 233−34.Spring 2022 Compulsory Custody and Classrooms 279
relied heavily on the original Miranda analysis, noting that “the very
fact of custodial interrogation exacts a heavy toll on individual liberty
and trades on the weakness of individuals” 93 and that “[c]hildren are
particularly vulnerable to that coercion, making Miranda warnings
especially important when police place a student under custodial
interrogation at school.” 94 Additionally, the B.A. court identified the
heightened disciplinary aspect and risk of educational consequences that
students face while they are being investigated at school; namely, that
students are already at risk of suspension or expulsion regardless of
whether an officer is present during questioning. 95
Though the factors identified in B.A. v. State are all part of the totality
of the circumstances analysis required by the current Miranda-custody
framework, each of these factors, derived from cases across the country,
warrant their own analysis because each factor fails to properly recognize
the compulsory aspect of school attendance in the first place:
Factor 1The number of officers present and how they are
involved: In S.G. v. State, 96 the Court of Appeals of Indiana found that
a seventeen-year-old student, suspected of stealing a cellphone, was not
in custody when questioned by the school’s principal in the presence of
an officer who worked at the school. 97 There, the court relied on the
student being brought to the principal’s office at the request of the
principal, and not as part of a direct police investigation. However, the
court glanced over the fact that the student was escorted out of class by
the officer and brought to the principal’s office, where the officer
remained while the student was questioned. The court further
rationalized that because the principal, and not the police officer, asked
the question about the cell phone, the student was not in a custodial
environment. 98
This analysis fails basic reasoning. Regardless of who asked
questions of the student, the student in S.G. was removed from his class
by a uniformed officer; therefore, he was under the physical direction of
the officer and should have been considered to be in custody then. What
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93. Id. at 230 (quoting Miranda v. Arizona, 384 U.S. 436, 444, (1966)).
94. Id.
95. See id. at 229.
96. See S.G. v. State, 956 N.E.2d 668 (Ind. Ct. App. 2011).
97. Id. at 679.
98. Id.280 Journal of Law & Education Vol. 51, No. 1
should the student have done? Run? Was he free to say “I’m not going
with you” when removed from class? Of course not. While at school,
students are expected to follow the direction of adults in authority
positions. We use schools to embed in students a certain amount of
respect for authority and social understanding. 99 When coupled with the
subordinate nature of the student−faculty relationship, S.G.’s situation
demonstrates that regardless of how involved an officer may be in the
actual questioning, students are in a restricted environment well before
formal interrogation.
Factor 2Whether the setting is a traditional school discipline
environment or is police-dominated: In In re Tyler F., 100 the Supreme
Court of Nebraska also found that a student was not in a custodial
environment when plain-clothed police came to his school, requested
that the SRO remove the student from class, and then questioned him. 101
Neither the officers nor the SRO ever read the student his Miranda
rights, even though the questioning was part of an active
investigation. 102 Though the court identified the six-part test to
determine custody used by the Eighth Circuit:
(1) whether the suspect was informed at the time of
questioning that the questioning was voluntary, that the
suspect was free to leave or request the officers to
[leave], or that the suspect was not considered under
arrest; (2) whether the suspect possessed unrestrained
freedom of movement during questioning; (3) whether
the suspect initiated contact with authorities or
voluntarily acquiesced to official requests to respond to
questions; (4) whether strong[-]arm tactics or deceptive
stratagems were employed during questioning; (5)
whether the atmosphere of the questioning was police
dominated; or, (6) whether the suspect was placed under
arrest at the termination of the questioning. 103
_____________________________
99. See Nancy Kober, Public Education for the Common Good: Why We Still Need Public
Schools, CTR. ON EDUC. POL’Y 7, 10 (2007), https://eric.ed.gov/?id=ED503799.
100. In re Tyler F., 755 N.W.2d 360 (2008).
101. Id. at 364-65.
102 . Id. at 365.
103. Id. at 367.Spring 2022 Compulsory Custody and Classrooms 281
The court placed an inordinate amount of emphasis on the last three
factors. The court found no Miranda violation because Tyler provided
no evidence that he was threatened with juvenile detention, Tyler was
told he was not formally under arrest, Tyler was not handcuffed or
physically restrained, and the atmosphere of the interrogation was the
school, rather than the police station. 104
This again begs the question if any reasonable person would have
felt free to resist police and authority figures in such a situation. Any
person who has ever gone to school, ever been called to the principal’s
office, or ever been in a small, windowless room with not only authority
figures, but also armed police officers, knows that this is exactly the
type of situation where Miranda is most important. Reliance on a
subjective, six-factor test in this case fails the accused in this case.
Recognizing that the instant Tyler is removed from class by a resource
officer, or by any school authority figure, would place him in a not-free-
to-leave situation would properly push the custody analysis back to well
before questioning even began.
Factor 3What the student is told about the interview: In re C.H. v.
C.H., 105 the Supreme Court of Nebraska again took up the custody in
school analysis, but, in applying the same six-factor test, determined
that the student in that case was in custody. 106 The court this time
properly found that not only had the student never been told he was free
to leave but also that he was never told that he was neither under arrest
nor that he had the choice to not talk to the officers. 107 The student in
C.H. allegedly committed sexual assault against his step-sister; C.H.
was taken directly to juvenile custody after interrogation because he was
not welcome back at home. 108 Here, C.H. was not only in a custodial
environment, but also in a situation where adults responsible for his
well-being abandoned him due to his alleged conduct. Arguably, C.H.’s
constitutional due process rights required even more heightened
consideration and clarity because he had no adult willing to advocate
for him. Again though, had there been an initial recognition of the need
for a Miranda warning prior to questioning, not only would C.H.’s due
_____________________________
104. Id. at 369-70.
105. In re C.H. v. C.H., 763 N.W.2d 708 (2009).
106. Id. at 715.
107. Id.
108. Id. at 712.282 Journal of Law & Education Vol. 51, No. 1
process rights been given proper consideration, but this investigation
would have been without procedural defect, making justice for the
victim more likely.
Factor 4The length of the interview: In People v. N.A.S., 109 during
a sexual assault investigation, a student was removed from regular
school activities and taken to the principal’s office. 110 There, he was
met by his father and uncle and was soon joined by not only the SRO,
but also a uniformed police officer who presented a Miranda card to the
student. 111 The student and the father acknowledged that the student
understood his rights and could proceed with questioning. 112 The student
denied knowing anything about the alleged incidents, and the whole
interrogation took somewhere between five to ten minutes. 113
Upon appellate review of the trial court’s proper determination
that the student did not knowingly, voluntarily, and intelligently waive
his rights, the Supreme Court of Colorado determined the student was
never actually in custody—so no Miranda warning was ever needed. 114
The court weighed yet another set of factors in coming to this
determination:
1. the time, place, and purpose of the encounter;
2. the persons present during the interrogation;
3. the words spoken by the officer to the defendant;
4. the officer’s tone of voice and general demeanor;
5. the length and mood of the interrogation;
6. whether any limitation of movement or other form of
restraint was placed on the defendant during the
interrogation;
7. the officer’s response to any questions asked by the
defendant;
8. whether directions were given to the defendant during
the interrogation; and
_____________________________
109. People v. N.A.S., 329 P.3d 285 (Colo. 2014).
110. Id. at 287.
111. Id.
112. Id.
113. Id. at 288.
114. Id. at 291.Spring 2022 Compulsory Custody and Classrooms 283
9. the defendant’s verbal or nonverbal response to such
directions. 115
The court reasoned the questioning did not constitute custodial
interrogation because: the interrogation was relatively short, non-law-
enforcement personnel were present, the officer never raised his voice,
the questioning happened in a school setting and not in a police station,
and the student’s movements were never restricted. 116 Furthermore, the
court gave only a passing glance at the age of the suspect—who was
thirteen. 117 The court would never undertake this analysis if only there
was the recognition that the removal of a student from regular school
activity to a questioning environment constitutes custody.
This case also demonstrates exactly why it is imperative not only to
recognize that students are in an inherently custodial environment at
school but also to recognize that minors cannot properly waive their
Miranda rights in school settings. Like the trial court in this case found,
though the subject here was accompanied by his father, who assured the
officer that the child understood his rights, the waiver was improper.
Children, when faced with a room full of adults, in a place where they
are not free to leave, are not capable of voluntarily or intelligently
waiving their rights. Not only is it likely that the student was following
his father’s lead in the waiver of his rights but also it is empirically likely
that the child did not fully understand the rights he was waiving. 118
Factor 5The student’s age. As discussed in the beginning of this
Note, J.D.B. v. North Carolina, while inserting an age factor into the
totality of the circumstances analysis, consideration of age alone is
insufficient to properly recognize that students are already in custody in
school. 119 Many truancy laws apply to students over the age of
eighteen. 120 These students, likely older high school students, are still in
a subordinate relationship with faculty and staff while at school, and,
for purposes of this analysis, are at even greater risk of adverse impact
of truancy laws because they are likely responsible for their own civil
_____________________________
115. Id. at 289.
116. Id. at 289-90.
117. Id. at 291.
118. See generally discussion supra Part III.A.
119. J.D.B. v. North Carolina, 564 U.S. 261 (2011).
120. See NAT’L CTR. FOR EDUC. STATS., supra note 88.284 Journal of Law & Education Vol. 51, No. 1
fines and are ineligible for juvenile court. Exactly because truancy laws
can compel school attendance for students over the age of eighteen who
have not completed high school, it is necessary to find that schools are
inherently custodial, regardless of the age of the students affected.
Factor 6Whether the student is taken into custody after the
interview: In Howes v. Fields, the Supreme Court determined that an
already incarcerated person was not in a custodial interrogation setting
precisely because he was already incarcerated when questioning
began. 121 Even though this factor is listed by the Supreme Court of
Indiana as a factor to consider for the custody analysis of students,
adding this factor to the custodial interrogation analysis is too little too
late. Subjects are afforded Miranda protections before custodial
questioning. Whether a subject is subsequently arrested requires a retro-
analysis of the circumstances surrounding the interrogation. This factor
improperly shifts the analysis to the objective actions of the officers and
strays from analyzing the objective understanding of the subject.
Subsequent arrest should not be a part of the totality of the
circumstances analysis and can be disposed of by acknowledging that
students are in custody when being questioned in school.
Factor 7The relationship between the parties, including whether
police officers act as teachers, counselors, or law enforcement
agents: 122 By interjecting this factor into the custody analysis, the court
in B.A. v. State requires further fact-specific inquiry, on a case-by-case
basis, for understanding the relationship between schools and their
resource officers or law enforcement officers before determining
custody. This factor, while important to understanding the overall
custodial environment created by these relationships, again removes the
analysis from whether the student would feel free to leave during
questioning, and places improper emphasis on contractual relationships
that students are not privy to. Students do not objectively know the
relationship between their school administrators and the officers on
school grounds. In fact, schools use this to their advantage 123 by creating
an environment where students have a multitude of authority figures on
_____________________________
121. Howes v. Fields, 565 U.S. 499, 509 (2012) (listing yet another set of factors for the
custody analysis); As author of this Note, I do not agree with the Court’s analysis and would
argue that, like school, prison is also inherently custodial for the same reasons set forth herein
122. See Minnesota v. Murphy, 465 U.S. 420, 459–60 (1984) (Marshall, J.,
dissenting); see also Lesley, supra note 65.
123. See Connery, supra note 66.You can also read
